Author: SHRI RABIDEB MUKHOPADHYAY,MEMBER
FINAL ORDER/JUDGEMENT
This is an application u/s.12 of the C.P. Act, 1986.
The Complainants stated that the OP has a construction company (residential building and selling & reselling of flats around Rishra, Hooghly). The Complainants allured by the hoarding of the project (C.S. & R.S. Plot NO. 5292 and 5293, khatian no. 2345 lying within Mouza Rishra,J.L.No.27, Municipality Holding 5, 5B, 5B/1, Sastitala Lane, Dist. Hooghly) and interested to purchase a 600sq. ft. Flat at the rate of 1500 sq. ft. on the top floor of the said project. The Complainants requested to OP to furnish a photocopy of all the paper of said land but the same was not happened and OP made a lot of excuse and assured nothing to worry. The Complainants convinced to paythe amount of Rs. 2,15,000/-. OP informed to the Complainants that the said agreement would be executed in the month of September, 2015 and the Complainants agreed to pay the booking amount on the date of signing the agreement for sale.
On 12 August, 2015, the Complainants had to execute a special power of attorney due to their purpose of jobs in favour of the brother of the Complainant-2 herein namely, Mr. Namit Dave, to execute all agreements regarding the said flat and monitor the progress of the same.
On 24th September, 2015 OP called the Complainants to execute the said agreement for sale and accordingly on same day, the said Mr. Namit Dave, the Constituted attorney of the Complainants visited the office of OP. Upon the Complainant signed payment cheque of Rs. 2,15,000/- , the OP executed agreement for sale with the said Namit Dave, the constituted attorney of the Complainants.
At the time of executing of sale agreement, OP assured that the project (flat) was free from all encumbrances and completed within approximately 6 months from the time of booking of the flat.
In November, 2015, after execution of said agreement, the constituted attorney of the Complainants came to know that there were certain disputes regarding the said land and the said project had been halted and stopped for an uncertain period of time.
The constituted attorney of the Complainantsasked OP for official paper of said undergoing project land but OP evaded the query and falsely reassured him. In early 2016, the Constituted attorney Complainantscame back for Siliguri to seek and understand the problems after knowing form locals that land is disputed.
The constituted attorney Complainant met many times with OP regarding the dispute and progress of construction and showing the paper of land but all the time OP always reassured Constituted attorney Complainant that the your query would be solved.
After waiting on many times reassuring to solve the dispute, in the month of March, 2016, the Complainants visited the OP’s office to cancel their booking of the said flat and to claim the refund the entire booking amount but the OP reassured that the work would start in a few days as the issue was almost solved.
The Complainants stated that as per the agreement between the OP and the Complainants, the OP has failed to complete the said project within 6 months from the day of executing the agreement for sale.
The Complainants made a representation dated 11th February, 2017 to the OP through speed post for cancellation of the said flat as well as for refund of the booking amount in their favour but even after receiving the representation by OP, on the 22nd of February, 2017, the same was not done.
Complainants through Advocate, Mr. Niladri Banerjee sent a legal notice dated 21th March, 2017 by speed post claiming the booking amount of Rs. 2,15,000/- and cancellation of the aforementioned flat. Such legal notice returned with the comments “Intimation served and Unclaimed” on the 31st of March, 2017.
The Complainants stated that OP did not cancel the booking of saleof flat and did not return the booking amount even after a period of 18 months from date of executing the agreement for sale.
The Complainants prayed for direction to pay Rs. 2,15,000/- along with interest at the rate of 10 percent P.A. from 25.03.2016 and also to pay Rs. 1,00,000/- for mental agony and harassment and Rs. 20,000/- for litigation cost.
Points for Discussion
1) Whether the Complainants are Consumers under the O.P.;
2) Whether the O.P. is deficient in rendering service to the Complainants;
3) Whether the complainants deserve relief.
Decision with Reasons
1) At the outset it needs to be noted that the original Complaint in CC case no. 122/2017 was lodged with the Hooghly Forum having their Jurisdiction. As per order dated 08.03.2018 the records with the case were transferred by the Hon’ble State Commission to this Forum and this case has been renamed as RBT/CC/245/2018 in this Forum.
2) As per order no. 14 dated 12.09.2018 of this Forum, it appears that the Director of GPO informed through letter dated 31.08.2018 that the notice of this Forum was delivered to the OP on 07.07.2018 but the OP did not appear before this Forum to contest the case by filing W. V. So the case ran exparte against the OP in terms of the said order of this Forum dated 12.09.2018. It is interesting to note that the OP contested against the Complainant through Ld. Advocate in the Hon’ble State Commission as revealed from Hon’ble State Commission’s order dated 08.03.2018.
3) We have perused the Complaint including the enclosures. It appears from the Complaint that the Complainants verbally wanted to see the legal documents relating to the title of the land but OP evaded the point with Jugglery of words and false pleas and assured that there would be no problem, the OP being a local people (para 7 and 8).
4) We presume that the OP clearly played fraud in respect of the title of the land upon which the building is being constructed as he kept tongue in the cheek by way of knowing that the land involvesdisputes but he did not disclose it to the Complainants to receive booking money. Evidently, the construction got stopped in the midway due to such disputes as per Complainants’ enquiry (para 15 and 17) and the OP assured of resolution of disputed land. The Complainants filed some copies of the incomplete building which got so stopped.
Then it is a matter of question how first paragraph of third page (running page 20) of the Agreement for Sale of September, 2015 states “AND WHEREAS the schedule property at present is absolutely free from all encumbrances, and attachment and the DEVELOPER has not entered into an agreement for sale with regard to ‘B’ schedule flat with anyone else and there is no such litigation on the schedule property”.
5) It is also astonishing how the 4th para of 2nd page (running page 19)of the Agreement states “……….and the purchasers is very much interested to purchase the ‘B’ schedule flat after being satisfied with the position of the land as well as verified the relevant papers along with the title deeds and thereby agreed to make payment as an advance amount of Rs. 2,15,000/- ………….”.
Such attitude and dealings of the OP developer to collect money against sale of flat and to fail to complete construction is very UNFAIR.
6) AnotherUNFAIR means adopted by the OP developer is that there is no mention of specific date of delivery of the flat (as he well knew that the settling of dispute in the title deed which he had suppressed to the Complainants would take time) and the language used at last para of the 2nd page of the Agreement (running page 19) is evasive and misleading. But there is mention of the penalty clause in the same paragraph for deduction of 20 percent money on failure of the Complainants to make payment in time. The developer was only inclined to see his own interest but threw off the interest of the intending purchasers/Complainants.
In this count,the OP is greatly deficient and negligent to the interest of the Complainants.
7) The OP developer, apart from the fact that he did not attend the proceedings of this Forum to defend his case, he did not even reply to the letter dated 11.02.2017 written by the Complainants to the proprietor of Jewar Construction, Debasis Barman and letter dated 21.03.2017 written to the OP by the Complainants’ Advocate detailing the facts and claiming the refund the booked amount of Rs. 2,15,000/- with 10 percent interest from the date of payment. Postal receipts and track reports for those letters showing delivery have also been annexed with the Complaint but the OP remained silent.
8) Now, it is the settled principle of law that whenever a party inspite of getting opportunity to defend his case, does not do so, he remains on the faulty side and the leverage of such default goes to the other party (here the Complainants). Since the allegations given in the Complaint and confirmed by affidavit by the Complainants remained unchallenged by the OP, we may presume that all the allegations are true and the OP failed to defend those allegations.
9) Since the Complainants paid the booking amount of Rs. 2,15,000/- through their attorney to the OP represented by Debasis Barman for purchase of a flat, the Complainants became Consumers under the said OP in terms of section 2 (1)(d)(ii) of the C.P. Act, 1986.
As the OP failed to deliver the said flat and could not compete the construction for the alleged legal dispute of land, which the OP suppressed to the Complainants and did not refund the booking amount in spite of receiving letters from the Complainants and their Advocate, the OP is deficient in rendering promised service to the Complainants, in terms of section 2 (1) (g) read with section 2 (1)(o) of C.P. Act, 1986.
Not only this, the OP suppressed the material facts and misrepresented the fact to the Complainants and thereby misled them in the whole episode forcing them to deposit booking money in the conception that the plot has no legal dispute (but actually which is not the fact), the OP suffers from unfair trade also.
The Complainants suffered for such deficiency in service and unfair trade practice rendered by the OP. So the Complainants deserve some relief. It remains the fact that the Complainants claimed 10 percent interest from the date of deposit of money with the OP. This claim may not be very high as during 3 to 4 years, the purchase price of a flat rose high. But if we allow this 10 percent interest, we may not consider separate compensation for mental agony and physical harassment in the line of the settled principle laid down by the Hon’ble Higher Courts.
In the circumstances of above analysis, we are constrained to pass
ORDER
That the Complaint be and the same is allowed exparte against the OP represented by Debasis Barman with cost, in terms of section 13 (2)(b)(ii) of the Consumer Protection Act, 1986;
That the OP Jewar Construction represented by Debasis Barman is directed to refund Rs. 2,15,000/- with an interest of 10 percent per annum from 25.03.2016 till date of actual payment, and Rs. 10,000/- as litigation cost, to the Complainants, within 30 days from the date of this order;
That the OP Jewar Construction represented by Debasis Barman is further directed to pay an amount of Rs. 50,000/- for adopting unfair trade practice, misleading and false representation to the Complainants, 50 percent of which shall be paid to the Complainants and remaining 50 percent shall be deposited with this Forum, within 30 days from the date of this order;
That non-compliance of any of the above orders by the OP Jewar Construction represented by Debasis Barmanwithin the stipulated time of 30 days shall entitle the Complainants to put this order into execution in terms of section 27 of the Act, ibid.
Let copy of the Judgment be handed over to the Parties when applied for.
